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HB 1165 Replaces Marriage License with Marriage Certificate—What’s the Difference?

I’m not sure if House Bill 1165 is a sneak attack or a snark attack from the Religious Right, but Rep. Steven Haugaard (R-10/Sioux Falls) wants to get rid of marriage licenses. His HB 1165 repeals ten statutes that provide for marriage licenses, then replaces them with marriage certificates as the documents legally recognizing the existence of marriages. The marriage certificate still costs $40, now padi at the time of filing. $10 of that marriage certificate fee still goes to the county general fund, just like $10 of the marriage license fee does now. The other $30 still goes to the county domestic abuse program fund. The county register of deeds still files the marriage certificate in the county archives.

So what’s the difference? The marriage certificate is issued by anyone authorized to solemnize marriages—”a justice of the Supreme Court, a judge of the circuit court, a magistrate, a mayor, either within or without the corporate limits of the municipality from which the mayor was elected, or any person authorized by a church to solemnize marriages.” Notice that the county register of deeds, the official who currently issues marriage licenses, is not on that list.

Remember Kim Davis? Ah ha.

HB 1165 is really a clever way to avoid having to send Attorney General Marty Jackley to court to lose his argument that public employees can refuse to obey the Supreme Court’s ruling legalizing same-sex marriage. It obviates the need for the absurdly bigoted and unconstitutional HB 1107, which tries to write into law permission for county employees to discriminate against LGBT folks and anyone else whose snogging offends their religious sensibilities. By eliminating marriage licenses, HB 1165 takes county employees out of the line of fire on marriage equality. All the county registers of deeds have to do is take the money and file the documents, without having to put their own names on the documentation of marriages consecrated by Satan.

But Rep. Haugaard shows his stripes with two of the repeal provisions in HB 1165. Section 3 repeals this helpful statute:

The application for a marriage license shall contain the following statement:

“The laws of this state affirm your right to enter into this marriage and at the same time to live within the marriage free from violence and abuse. Neither of you is the property of the other. Physical abuse, sexual abuse, battery, and assault of a spouse or other family member, as well as other provisions of the criminal laws of this state, are applicable to spouses and other family members and violations thereof are punishable by law.”

The application shall contain a separate line for the signatures of the applicants verifying that the applicants have read and understand the statement [SDCL 25-1-10.2].

Section 5 cuts out this friendly advice:

At the time the application for a marriage license is filed, the register of deeds shall distribute to each applicant educational materials prepared and provided at no cost to the counties by the Department of Health on topics related to sexually transmitted disease, HIV transmission, and prenatal care. The information shall include a list of locations where counseling and testing services are available [SDCL 25-1-28.1].

Now we know Rep. Haugaard doesn’t like folks getting sexually educated. But while we wait for Rep. Haugaard’s dream world of sex limited to marriage to come about, does it hurt to keep making sure that folks on their way to that blessed union get a flier from the Department of Health on how to keep their parts clean? And is there any good reason for whoever issues whatever document makes a marriage legit to forgo offering that friendly reminder to the happy couple that they are not each other’s property and they don’t have to put up with any kind of abuse?

Those two repeals give HB 1165 a fishy ideological whiff. The idea of replacing marriage licenses with marriage certificates seems trivial and innocuous, but let’s keep an eye on HB 1165 for any other unseen consequences.

25 Comments

  1. Loren 2016-02-03 10:55

    Yes, because South Dakotans want to be so much like Kim Davis. BTW, how many “marriage licenses” does Kim have? Our idol! And we actually pay representatives to sit around and talk about things this important! Thank goodness there are no other pressing issues!

  2. Nick Nemec 2016-02-03 11:04

    I see no compelling reason for this change. A no vote is in order.

  3. Daniel Buresh 2016-02-03 11:24

    How about we remove marriage entirely and quit creating a special class of people which only perpetuates the divide? If you support marriage, you support discriminatory practices.

  4. Vickie 2016-02-03 11:50

    I propose that SD legislators,and any other form of SD government,submit to drug testing,I.Q. testing,and common sense evaluations for ALL of them. This year’s legislative session seems to put forth the dumbest ideas and I am not the least bit surprised. What a bunch of crap…

    I also really appreciate the motor vehicle registration increase so that I can still drive on crappy roads. NOT!

  5. Daniel Buresh 2016-02-03 11:58

    The motor vehicle registration fee could double and it still would be cheap.

  6. mike from iowa 2016-02-03 12:20

    DB-the onliest people in the entire divided states of America that want special rights is your party. You want marriage sanctity to be yours and yours alone. Gays and Lesbians ask for equal rights,kinda like what the constitution had in mind.

    It is a lead pipe cinch that if Gays and Lesbians didn’t fight for equal rights and the benefits that are attributed to married couples,your party would never give them their equal rights. Your side just has to “Lord” it over everyone else.

  7. Jenny 2016-02-03 12:34

    Never doubt that the SD GOP legislature can come up with even crazier proposals each year, for indeed they can.
    Right on, Mike! You tell ’em!

  8. Porter Lansing 2016-02-03 12:46

    Republicans snogging with Satan? It’s happening …

  9. Rorschach 2016-02-03 13:58

    SDCL 25–10.2 proposed to be repealed contains a false statement: “The laws of this state affirm your right to enter into this marriage[.]”

    The rights of gay couples to marry are affirmed not by the laws of SD, but by a higher power.

  10. Gail L. Swenson 2016-02-03 14:26

    Is this a way around the Supreme Court decision? Did the decision use the term “license”? If we give “certificates” does that allow for making our own rules and not abiding by the SCOTUS decision? There has to be something more to this…

  11. Troy 2016-02-03 15:30

    I think you are being boogies where they don’t exist.

    A licence implies a need for consent/permission and it may be conditional from the state.

    Certificates imply the couple are certifying they are eligible under the law and they are filing it as required by the state.

    This at least better conforms to the existing reality.

    Regarding the two things struck, I’m “notified” by too much now. If they need to be told marriage isn’t slavery, I’m not sure they will understand the notification. And, if they don’t know about STI’s, I’m not sure they will understand the materials anyway.

  12. larry kurtz 2016-02-03 15:43

    Another SDGOP whack job? What a surprise.

    But laud Rep. Haugaard for running out the clock avoiding accountability for the culture of corruption in Pierre, Bendagate and the Westerhuis murders.

  13. Mark Winegar 2016-02-03 15:54

    This bill needs a quick death.

  14. Roger Elgersma 2016-02-03 17:40

    then if someone runs against Trump he can say that they are not married in South Dakota.

  15. caheidelberger Post author | 2016-02-03 18:16

    In a Twitter conversation, Jonathan Ellis reminded me that Rep. Haugaard proposed this same bill last year but didn’t get it past committee. Some conservatives complained that eliminating marriage licenses would water down marriage. Republican Reps. Scott Craig and Herman Otten voted to kill the bill, but as Jonathan Ellis wrote after the Obergefell decision, Craig and Otten said they wanted to revisit the issue.

    That tells me—and we’ll see if Republican statements and votes on HB 1165 bear out this conclusion—that HB 1165 really is just an anti-gay reaction of conservatives who don’t want the state to have to put our stamp of approval on same-sex marriages.

    I am curious as to whether HB 1165 will make it harder for same-sex couples to get officially married. The current system includes those solemnizers and their certificates, so folks getting their licenses from the county clerk now still have to get someone to solemnize the marriage. I am thus inclined to think this measure does remove one step to getting married and inserts no obstacle. Am I missing anything?

  16. Douglas Wiken 2016-02-03 18:48

    SD needs a “Civil Union license” which only needs the notarized signatures of Spouse 1 and Spouse 2 and filing with a county auditor. It should have check boxes on it indicating if a “Marriage Vows” certificate from a religious or other organization is also attached. Completely separate the legal form of licensed co-habitation from the religious versions. Couples can be licensed only and that would be same as married for all laws. Adding the religious or other vows or sacramental records should be an option with little if any legal impact. This approach removes this as an issue for both the gays and the religions. It appears that both groups would rather gather publicity and funds than actually simply solve the problems

  17. larry kurtz 2016-02-03 18:52

    South Dakota needs a more vigorous blizzard followed by an act of God that would bury the entire state in twenty feet of volcanic ash.

  18. LK Burghardt 2016-02-03 19:32

    Enough is enough. Our great nation was founded on the premise of separation of church and state. Please stop shoving your religious beliefs down our throats! And remember, the Holy Bible says it’s a sin to judge. Stop inflicting your holier than though morality on others.

  19. Gracie 2016-02-04 06:41

    Marriage is a contract, vows from a religious organization are separate and must not be required for a marriage to be legal and binding.

  20. Daniel Buresh 2016-02-04 09:03

    Nothing about marriage is about equal rights. It’s about creating a special class that allows the gov’t and employers to discriminate based on.

  21. caheidelberger Post author | 2016-02-04 09:40

    I’m putting Douglas, Burghardt, and Gracie together and hearing a good question for Rep. Haugaard: why does a solemnizer have to be involved in this process at all? Why isn’t it as simple as what Douglas describes: two people sign a contract, file it with the county, and the register of deeds stamps it and files it with all the other contracts and deeds. What else do we need? Maybe a notary seal to verify that the signers are who they say they are? Maybe a quick check in the marriage database to make sure the signers aren’t already married to someone else (we’re still supporting monogamy, right?). What essential public does the solemnizer (who is usually a religious officiant) serve?

    Daniel, just how bad is this anti-single people discrimination?

  22. Daniel Buresh 2016-02-04 11:10

    Cory, it isn’t bad, but it exists. Why should my benefits be less because I am not married? Why can’t I extend my benefits to anyone I so choose without being married to them?

    Here is a pretty good paper on the history of marital status discrimination:

    http://www.bu.edu/bulawreview/files/2015/05/JOSLIN.pdf

  23. caheidelberger Post author | 2016-02-04 12:38

    Just to check, Daniel: do we limit that extension of benefits to one partner you designate?

    And does the marital discrimination described in that paper really hinge on the existence of a state marriage license? Doesn’t HB 1165 leave that discrimination against non-marital households in place by continuing to recognize marriage certificates?

  24. mikeyc, that's me! 2016-02-04 16:41

    Larry-
    Can you just bury Pierre in the ash?

  25. leslie 2016-02-04 19:06

    Whether it involves rolling back LGBT equality or a woman’s right to choose, conservative groups like to find a successful template and then repeat it across the country. South Dakota appears to be their latest petri dish, where lawmakers are pushing several bills (HB 1008, 1107, and 1112) aimed at ensuring an organization’s right to discriminate against married same-sex couples and prohibiting fair treatment for transgender students…..Yes, it’s nearly impossible to keep track of the slate of hateful LGBT bills up for consideration in 2016. Indiana, Oklahoma, South Dakota … the list goes on.

    One good resource with weekly updates for checking where your state stands is at the ACLU website here and here.

    dailykos today

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